Is Bankruptcy the Best Option for Me (or My Family)?

At the risk of sounding too much like a lawyer, the answer is … it depends. There is no doubt that filing for bankruptcy can be a lifeboat in a stormy sea – it wipes the slate clean, stops the collection calls and letters, and provides a fresh start. Almost all consumer debts, such as credit card debts and medical bills, are dischargeable via bankruptcy. Also, the vast majority of people get to keep all of their property, including their house and car. However, whether to file for bankruptcy, when to file, and how to file are all extremely important considerations. The particular financial circumstances, future expectations, and personal preferences of each individual need to be carefully assessed. Also, it depends on what type of debts you have. If most of your debt is non-dischargeable (most tax debts, student loans, child or spousal support, etc.), then Chapter 7 bankruptcy at least, may not be the best option. But Chapter 13 bankruptcy could be a good solution. Ultimately, of course, the decision whether to file for bankruptcy must be made by the individual or couple, not by friends, family, or a lawyer.

With that said, it is highly recommended that those contemplating bankruptcy consult with a qualified bankruptcy attorney prior to making this crucial decision. The bankruptcy laws themselves can be quite complex, are poorly drafted, and have been interpreted differently depending on the jurisdiction. The required forms (petition, schedules, etc.) are numerous and require accurate, detailed, and current information.  A good (and ethically responsible) lawyer will never try to “push” his or her potential client to file for bankruptcy. Instead, the attorney should thoroughly evaluate the overall financial circumstances of the client and explain the bankruptcy process, including the pros and the cons. Only in this way can people considering bankruptcy make the best decision for themselves and their family. Of course, there are scenarios in which, even if you have fallen behind on your bills and accumulated significant debt, bankruptcy may not be the best option. However, if you can answer yes to some or many of the following questions then bankruptcy may indeed be a good option for you.

Are you significantly behind on your credit card payments or other payments? Has your credit card company or another creditor/debt collector sent you a default notice, or threatened to sue you? Has a creditor assigned your debt for collection? Are you being sued by a debt collector or its attorney? Do you have judgments against you for unpaid debts? Are your wages being garnished or threatened with garnishment? Have you recently lost a job, suffered an illness or a disability, and had debts pile up? Are you stressed out about your debts and concerned about your ability to pay them? Have you incurred significant medical bills that you are afraid you will not be able to pay? Has the stress of your debts caused arguments or turmoil in your personal life? Are debt collectors calling you, sending you letters, or harassing you? Do you need to free up money that you are paying to your creditors so you can afford your basic living expenses like mortgage/rent, food, and support for your family?

Even if some of the above scenarios apply to you, it does not mean that bankruptcy is the only choice, but it is probably a good idea to at least consult with a bankruptcy lawyer to help you assess your situation further. Click here for more info about Chapter 7 bankruptcy, or here for more information about Chapter 13 bankruptcy. Or, better yet, If you live in Portland, Gresham, Multnomah County, or the Portland Metro area, and you think that bankruptcy may be a good option for you, contact me at (503) 847-4329 for a FREE phone consultation.

What Are My Options if I am Being Sued for Credit Card Debt, Medical Debt, or Other Debts?

Just because you allegedly owe a debt does not mean that you have no options or no rights. But you need to know your rights and exercise them.  As both a consumer rights lawyer and a bankruptcy lawyer, I may be able to help.

As both a bankruptcy attorney and a consumer rights attorney in Portland, Oregon, I often represent people who are being sued by creditors or debt collectors in Multnomah County or the surrounding counties. If you have outstanding debts that you can’t afford to pay, then filing a bankruptcy to wipe out the debts may be your best option. (For more detailed information about bankruptcy, go to my Chapter 7 bankruptcy page.) However, there are other options that can be, and should be, explored, as filing bankruptcy is not the best solution for every debt problem.

There are often valid defenses to these debt lawsuits.

One defense may be that the statute of limitations has run since the last time you used or paid on the account. This means that the creditor or debt collector has not filed the lawsuit against you within the applicable period of time allowed by law. The question of what statute of limitations law applies to the debt often depends on the particular law specified in the contract that gave rise to the debt. Often it is 6 years (Oregon’s contract period as well), but in some circumstances can be as short as three years from the date of default. Filing the lawsuit passed the statute of limitations would be a complete defense to the lawsuit. Another defense may be the amount demanded may not be accurate. This would be at least a partial defense. Sometimes, the creditor or debt collector even sues the wrong person! As shocking as this is, I’ve represented consumers in such cases more than once. Such lawsuits can and should be defended. Sometimes the debt collector/creditor may also be sued/counter-sued for violations of the the Fair Debt Collection Practices Act or the Oregon Unlawful Debt Collection Practices Act, or other consumer protection statutes (click here for more information on this subject)

In the end, it is important to remember that as the plaintiff (the one suing you) it is the debt collector’s burden to PROVE that your debt is valid and enforceable, that the amount claimed is the amount owed, and that (if the plaintiff is a debt buyer) there was a valid assignment of your debt by the original creditor. However, if you do not act in time (30 days from the date you were served with the “summons” and “complaint” in an Oregon non-small claims court) the debt collector will then apply for a default judgment and you will lose your chance to assert a defense. Once the debt collector gets a judgment against you, in Oregon the judgment will automatically attach as a lien to your home (if located in the same county) and is valid and enforceable for 10 years (and can be renewed quite easily). With a valid judgment, the debt collector can also get a writ issued to garnish your wages and/or bank accounts.

If you are being sued by your credit card company, a debt collector, and/or a hospital/medical services provider in Multnomah County, or a surrounding county in the Portland metro area, please contact me at (503) 847-4329 for a FREE phone consultation to discuss your options.

Study says 1/3 of Americans have at least one debt in collections and the average Oregonian is $60,752 in debt- the 9th highest average in the nation

More than one-third of Americans (35%) have a debt in collections, according to a study recently released by the Urban Institute. That means just about every third person you pass by on the street is dealing with a collection company in regard to a delinquent debt.

Just about one out of every three Oregonians is also dealing with a debt collector. The same study found that 30.5% of Oregonians have a debt in collections, with the amount averaging $5,456. The national average amount of a debt in collections is $5,178. The national average debt is $53,850. The average Oregonian is $60,752 in debt, the ninth highest in the nation. Only 20% of Americans with credit records have no debt at all.

Debt in collections often originates from nonpayment of a bill, including failing to make payments on an outstanding credit card balance, not paying medical or utility bills, or even not paying a parking ticket. After a debt is more than 180 days past due, it is typically placed in collections by the original creditor or sold to a third-party debt buyer. What the report reveals beyond the numbers is the daily financial distress millions of Americans are living under, as well as the degree of that distress.

The collections industry recovers approximately $50 billion annually, mostly from consumers, according to a study published this year by a Federal Reserve branch research group. Thus while everyday Americans may be struggling, the collections industry is booming and cashing in on the situation. Debt collectors are regulated by the federal Fair Debt Collection Practices Act (FDCPA), among other state specific statutes, such as Oregon’s Unlawful Debt Collection Practices Act (UDCPA). The vast majority of the debts being collected by debt collectors can be discharged in bankruptcy. Although filing a bankruptcy here in may not be the best option for everyone, at least consulting with a local bankruptcy lawyer in your area is probably a very good idea so that you can base your decision on the facts.  Also, if you feel that your rights may have been violated under the Fair Debt Collections Practices Act (FDCPA), you should also consult with a local consumer rights lawyer in your area.

Seventh Circuit further limits the collection of time-barred consumer debts

A recent decision by the Seventh Circuit in the consolidated appeals of McMahon v. LVNV Funding, LLC, and Delgado v. Capital Management Services, L.P., suggests that debt collectors need to take heed when collecting on debts for which the limitations period related to the underlying claim has expired. In both cases, the consumer plaintiffs had alleged that specific collection attempts violated various provisions of the Fair Debt Collection Practices Act  (“FDCPA”) (15 U.S.C. § 1692, et seq.). In McMahon, the dunning letter sent to the consumer was an attempt to collect on an alleged utility debt that originated about 14 years prior. In Delgado , the alleged debt was about eight years old. In both cases, the applicable limitations period had long since passed. Perhaps the most notable fact regarding both collection letters is that neither of the letters directly threatened litigation on the time-barred debts,  as previous case law already supports FDCPA violations for such conduct (e.g., Herkert v. MRC Receivables Corp., 655 F. Supp. 2D 870 (N.D. Ill 2009)).

However, favorably citing a Federal Trade Commission Report titled A Broken System: Protecting Consumers In Debt Collection Litigation and Arbitration, the Court reasoned that it’s likely that many consumers do not understand their rights (not to be sued) with regard to time-barred debts, and therefore may be misled into believing that if they do not pay the settlement amount that the debt collector will then initiate litigation. The Court also addressed concerns that in the absence of any explanation that the limitations period has expired, unsophisticated consumers could be coaxed into making even a small payment on the debt, unaware that such a payment may restart the limitations period pursuant to state law. This holding by the Seventh Circuit decision stands in conflict with previous sister circuit court decisions, by the Third Circuit in Huertas v. Galaxy Asset Mgmt., 641 F.3d 28 (3rd Cir., 2011) and by the Eight Circuit in Freyermuth v. Credit Bureau Services, 248 F.3d 767 (8th Cir., 2001), and is likely to cause some ripples throughout the debt collection industry.

SCOTUS Holds That Inherited IRAs Are Not Exempt Retirement Accounts in Bankruptcy

Recently, in an opinion authored by Justice Sotomayor, the U.S. Supreme Court released its unanimous decision in Clark v. Rameker, holding that individual retirement account (IRA) funds that a Chapter 7 bankruptcy debtor inherited from her deceased mother are part of the debtor’s bankruptcy estate and are not protected from liquidation by the Trustee to pay her creditors.

The Supreme Court upheld the Seventh Circuit’s decision disallowing the exemption, by finding that inherited IRAs do not share many of the same important characteristics of non-inherited IRAs and thus, unlike non-inherited IRAs, are not exempt from liquidation pursuant to the Bankruptcy Code. The applicable provision, 11 U.S.C. § 522(b)(3)(C), states that a debtor may exempt “retirement funds to the extent those funds are in a fund or account that is exempt from taxation” as set forth in the Internal Revenue Code. According to the Court, the central distinctions of inherited IRA accounts are that, unlike non-inherited IRAs, the beneficiary of the inherited IRA cannot continue to invest funds into the account, IRS tax rules require withdraw of funds from the account after it is inherited, it is possible to completely drain the account upon transfer, and the withdraws, or complete liquidation, could occur long before the transferee’s retirement age.

The Supreme Court’s decision resolved a circuit split, as the Fifth Circuit had reached a contrary holding in In re Chilton in 2012. It is important to note that “inherited” IRAs are different from “roll over” IRAs, and IRAs that are bequeathed by a deceased spouse to the surviving spouse. Those accounts may still be exempt pursuant to 11 U.S.C. § 522(b)(3)(C), because the IRS rules governing these types of more traditional IRAs do not necessarily exhibit the characteristics highlighted by the Court in Clark. It is also worth noting that some inherited IRAs may still be exempt pursuant to various state exemption schemes, depending on the language of the applicable state exemption statute. Although most bankruptcy attorneys outside of the Fifth Circuit were probably already cautious in advising potential bankruptcy clients with funds in inherited IRAs, but this is another reminder that extremely careful pre-bankruptcy asset determination and planning is certainly a must.

Affordable & Compassionate Portland Bankruptcy and Consumer Protection Lawyer